Today, Stimson and Sullum debate the federal government's
assertion of authority in states where certain kinds of drug use
are legal. Previously, theycompareddrug legalization and decriminalization.
Later in the week, they'll discuss drug-related violence, admitted
substance use by successful politicians and more.

Question: Do federal raids of legal local marijuana dispensaries
violate state sovereignty?

The law is on the feds' side

By Charles "Cully" Stimson

The answer to today's question -- not just mine, but the Supreme
Court's -- is no.

In the case of Gonzales vs. Raich, the Supreme Court ruled that
Congress has the constitutional power to ban the use of marijuana,
even when a state approves it for "medicinal purposes." Marijuana
is on the list of prohibited substances under the Controlled
Substances Act of 1970. It is classified as a Schedule I drug that
has, according to the federal government, no "medical uses." That's
the law of the land.

California voters apparently disagreed with that policy, so in
1996 they approved Proposition 215, known as the Compassionate Use
Act. That initiative made it legal for patients to get and use
marijuana for medicinal purposes. Advocates for medicinal use of
marijuana argue that patients should be able to use the drug
because it has palliative properties. Nobody wants patients with
horrible diseases to suffer, and if all it takes is a little
cannabis to ease pain, they say, states should be allowed to
regulate the distribution of marijuana.

So far, so good. But when you disagree with a law, it's too easy
to forget that we have a government of laws and not men -- in other
words, not a dictatorship but a self-governing democracy. That
means that the law applies to each of us equally, so you cannot
ignore a law simply because you disagree with it. What you should
do instead is challenge or try to change it.

A California resident did challenge it in Raich vs. Gonzales, but
the state's law lost. The U.S. Constitution states, "The Congress
shall have power to ... regulate commerce ... among the several
states." These simple words have produced more litigation and
disputes than any other clause in the Constitution. Reasonable
people can agree or disagree with the court's "commerce clause"
jurisprudence, and many agree with Justice Clarence Thomas' dissent
in Raich, in which he wrote that local cultivation and consumption
of marijuana is not commerce among the several states. But Thomas
was in the minority, and because we live in a country of laws, we
must follow the law as the court has interpreted it.

That's true for all of us, including myself, who have great
sympathy for those in pain because of sickness or disease. I would
do anything I could to help a sick or dying family member or
friend, but there's a real dilemma when that "anything" is a
violation of a valid law. Some people will do it anyway, and they
face the risk of arrest and prosecution. It's a small cost relative
to the enormous benefit of "government of laws and not men."

The importance of enforcing this federal law under these
circumstances is an open question. But a claim that enforcement
violates states' rights is just rhetoric, short of showing the law
is beyond Congress' enumerated powers -- a claim the Supreme Court
specifically rejected. And yet "state sovereignty" remains a
refrain of legalizers. Rather than try to change the federal law,
they would have their states simply ignore it in certain
circumstances. That has nothing to do with state sovereignty; it's
just lawlessness.

Charles "Cully" Stimson was a local, state and federal
prosecutor, a military prosecutor and defense attorney, and a
deputy assistant secretary of Defense. Currently, he is a senior
legal fellow at the Heritage Foundation (heritage.org).

The power to regulate anything

By Jacob Sullum

When the federal government banned alcohol, the supporters of
Prohibition recognized that a constitutional amendment was
necessary because Congress did not have the authority to impose a
ban simply by passing a law. The early laws dealing with other
intoxicants, including the Harrison Narcotics Act of 1914 and the
Marihuana Tax Act of 1937, were ostensibly revenue measures --
again, because it was widely understood that the Constitution did
not empower Congress to ban psychoactive substances it did not
like. By the time of the Controlled Substances Act of 1970,
Congress had dispensed with this pretense, decreeing not only
production and distribution but even intrastate possession of
certain psychoactive chemicals to be a violation of federal law.
What changed in the meantime was not the Constitution but the
Supreme Court's willingness to read the "commerce clause" as an
all-purpose excuse for Congress to legislate in almost any area
that strikes its fancy.

The transformation of a clause that was originally intended to
maintain free trade among the states into a blank check for federal
meddling has made a hash of the doctrine of enumerated powers,
which holds that Congress has only those powers explicitly granted
by the Constitution. The way federal courts now read the
Constitution, Congress can do whatever it wants, unless the
Constitution prohibits it (and sometimes even then). The Amazing
Super-Elastic Commerce Clause that emerged from Franklin D.
Roosevelt's New Deal has nearly obliterated the distinction between
national and local matters at the heart of our system of
government. Conservatives who consider themselves strict
constructionists, federalists or foes of big government usually
decry this development except when it comes to their pet issues,
such as drugs.

Cully, it amazes me that you or anyone who believes in the rule of
law can accept with equanimity the notion that grabbing a bag of
marijuana from the dresser drawer of a cancer patient in Colorado
or pulling up a cannabis plant in the backyard of an AIDS patient
in California amounts to regulating interstate commerce. "No
evidence from the founding suggests that 'commerce' included the
mere possession of a good or some purely personal activity that did
not involve trade or exchange for value," Thomas noted in his Raich
dissent. "In the early days of the Republic, it would have been
unthinkable that Congress could prohibit the local cultivation,
possession, and consumption of marijuana."

By stretching the meaning of interstate commerce beyond
recognition, the Supreme Court not only made life harder for
desperately ill people harassed by federal officials who do not
approve of the medicine that relieves their suffering, it drove a
stake into the heart of the so-called federalism revolution that
was supposed to restore some balance between the states and the
national government. "If Congress can regulate this under the
Commerce Clause," Thomas observed, "it can regulate virtually
anything."

To ban marijuana, Congress should have sought to amend the
Constitution through the arduous process prescribed by the framers,
just as it did when it banned alcohol. Instead, it has amended the
Constitution through legislative assertion and judicial
acquiescence.

Jacob Sullum, a senior editor at Reason magazine and a
nationally syndicated columnist, is the author of "Saying Yes: In
Defense of Drug Use."